Batool (Migration)

[2022] AATA 5184

Batool (Migration) [2022] AATA 5184 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Bibi Huma Batool

VISA APPLICANT:  Mrs Gul Shah Bibi

CASE NUMBER:  2207578

HOME AFFAIRS REFERENCE(S):          BCC2021/2040564

MEMBER:Stephen Witts

DATE:20 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 20 December 2022 at 1:17pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to return or remain – house, children and grandchildren in home country and other children and grandchildren in Australia – previous compliant visits to countries not comparable to Australia – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 April 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 26 October 2021. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 20 December 2022 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

11. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

13. The Tribunal notes that it has been provided with a copy of the relevant delegates decision by the applicants. In this decision it was stated that the visa applicant has previously travelled to countries such as Iran, Iraq, and Saudi Arabia and assessed that there is considerable difference between these countries to Australia and therefore it does not give weight to the contention that the applicant intends a genuine temporary stay in Australia. The delegate also stated that it considered the visa applicant’s personal circumstances noting that she has stated she intends to visit family in Australia and also noting that the visa applicant has declared she is unemployed, and also has not declared any family members residing in her home country of Pakistan, or that she owns any property or assets in her home country. On that basis amongst others, the delegate contended that the visa applicant does not intend a genuine temporary visit to Australia.

14. The Tribunal has also considered material provided by the applicants including details of property owned by the visa applicant back in her home country.

15. At the hearing the Tribunal had a discussion with the review applicant regarding the application.

16. She stated that she first came to Australia in November 2019 on a visitor visa after having studied a Master of Law in the United States of America. She stated that she came here to visit her sister and her sister’s husband and their 4 children and that once here after posting pictures on Facebook of herself she had a discussion with her mother, the visa applicant, who told her that her behaviour would not have been appropriate back in her home country of Pakistan and that she shouldn’t come home. She stated that she considered this and then made a protection visa application which was accepted and that she became a citizen in 2021.

17. She stated that she is now in a second marriage in Australia and that she has twin boys who are 18 months old and that she has struggled with postnatal depression and that she would like her mother to visit her in Australia for a few months to see the family and assist with caring responsibilities. She stated that her mother has many incentives to return to her home country including other family and friends and that she did not intend a long-term visit. She stated that it was too difficult for her and her family here to travel back to Pakistan as visitors. She stated that her husband was a production supervisor.

18. She stated that her mother has a son and daughter back in her home country both of which have 4 children each and that she has a house that she lives in with her son and that she has been a housewife most of her life and that her husband passed away some time ago. She stated that her mother also has other relatives in her home country including siblings and uncles and aunts. She confirmed that her mother has travelled before to Iraq, Iran and Saudi Arabia primarily for religious purposes. She stated that she thought her sister had made a previous visitor visa application for their mother some time ago which was rejected.

19. The Tribunal has considered the evidence carefully noting that the visa applicant does have a very limited history of international travel to comparable countries to Australia that have a similar beneficial migration profile as Australia and that over her life of 70 years she has only visited countries as noted above that do not enjoy such beneficial migration profiles to warrant permanent migration. The Tribunal notes also that here in Australia the visa applicant has two daughters and that both have children. The Tribunal also notes that it is the case that the visa applicant has a son and daughter back in her home country with children and that apparently she lives with her son there but after careful consideration finds that there are considerable incentives for the visa applicant with half her family here and living in Australia with such a beneficial migration profile that taken as a whole it lends weight to the contention that the visa applicant has significant incentive to attempt to remain in Australia on a more long-term basis and that she may not genuinely intend a temporary visit.

20. The Tribunal also notes that Pakistan, according to country information reports of recent times from the Department of Foreign Affairs and Trade, does exhibit social, economic, and cultural difficulties, and noting in particular the economic circumstances of Pakistan, the Tribunal finds that this also lends weight to the contention that once here, that the visa applicant may attempt to remain in Australia on a more long-term basis.

21. The Tribunal also has considered that the applicant owns a house back in her home country that she has been living in with her son and family but finds, after careful consideration, that should the visa applicant be successful in coming to Australia that assets of this kind may not act as a significant encouragement for the applicant to return as such assets can be liquidated, leased, or in some way held in common by the family, or in some way managed from Australia, and that therefore they do not feature as an encouragement for the visa applicant to return to her home country. The Tribunal notes that her son and family are living in the house and that it can easily be left in their care either for a significantly longer period of time or indeed permanently. The Tribunal therefore finds that this lends weight to the contention that the visa applicant may not intend a genuine temporary stay in Australia.

22. The Tribunal notes that the visa applicant has apparently always been a housewife and that she is at retirement age in any case and that she does not have any other incentive to return to her home country for employment reasons or associated incentives.

23. Accordingly, the Tribunal is not satisfied that if the visa applicant were to come to Australia that she would not seek to change her status on shore, given the benefits that she would derive. The above-mentioned factors give the Tribunal significant concern that the visa applicant would seek to change her status on shore and/or remain in Australia on a permanent basis.

24. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

25. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are not met.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Stephen Witts
    Member